The Affirmative are to advocate such a change, the abolition of the

common-law defenses of the employer. For the purposes of this

debate, it is immaterial to us whether this change is brought about

by a simple extension of the employer's liability, or whether it is

accompanied, as in many of our states, by a system of workman's

compensation. Likewise, it is a consideration extraneous to the

issues of this debate, whether the employer shoulder this risk

himself, whether he insure it in a private insurance company, or

whether he be compelled to insure it in a company managed by the

state. At all events, and under any of these plans, the proposition

of the Affirmative will be maintained, the employer will be deprived

of his defenses at common law, and the employee will recover his

damages regardless of questions of fault.

Assuming then the full burden of proof, the Affirmative propose to

demonstrate that the assumption of risk and the fellow-servant rule

as defined and interpreted by the common law should be abolished,

first, because whatever reasons may have justified these doctrines

in years gone by they have no application to industrial conditions

in our day; and, secondly, because the abolition of these common law

defenses will but place the burden of industrial loss, as in justice

it should be placed, upon the ultimate consumer of the product of

the industry.

Mr. Watson, speaking for the Negative:

The proposed abolition of these two common-law defenses, like every

change of law or any suggested reform, is brought to our attention

by certain existing evils. The advocates of this reform have a

definite proposition in mind and that proposition is definitely and

clearly stated in the question. It is a question in which people in

every walk of life are concerned. Since it is of such widespread

interest, let us lift it from a plane of mere debating tactics, in

which a question of this kind is so often placed, and where a great

deal of time is spent in arguing what the Affirmative or the

Negative may stand for according to the interpretation of the

question, let us lift it from that plane, and consider it as

practical men and women who are interested in the outcome of this

great problem. It is, then, in its larger sense, a legal question

and must be considered from the standpoints of justice and of

expediency.

It is not enough for the Affirmative to point out evils that exist

under these two common-law rules, for there is bound to be some evil

in the administration of all law; so they must further show that

these evils which they have named are inherent in these two laws,

and that the proposed change will remedy the existing evils. Now the

Negative maintain that the evils complained of are not inherent in

these laws, and we believe that the Affirmative plan is not the

proper solution of the problem.

I will show you that these common-law rules are founded on

principles of justice and that their removal would be unjust to the

employer; second that it would discriminate against the smaller

tradesmen, and third that the proposed remedy does not strike at the

root of the evil, since it would affect only a small percentage of

industrial accidents.

CARL SCHURZ ON GENERAL AMNESTY

(A bill being before Congress proposing to restore to leading

Southerners many of the privileges which had been denied them

following the war, Mr. Schurz determined the issue as follows:)

_Mr. President_: When this debate commenced before the holidays, I

refrained from taking part in it, and from expressing my opinions on

some of the provisions of the bill now before us; hoping as I did

that the measure could be passed without difficulty, and that a

great many of those who now labor under political disabilities would

be immediately relieved. This expectation was disappointed. An

amendment to the bill was adopted. It will have to go back to the

House of Representatives now unless by some parliamentary means we

get rid of the amendment, and there being no inducement left to

waive what criticism we might feel inclined to bring forward, we may

consider the whole question open.

I beg leave to say that I am in favor of general, or, as this word

is considered more expressive, universal amnesty, believing, as I

do, that the reasons make it desirable that the amnesty should be

universal. The senator from South Carolina has already given notice

that he will move to strike out the exceptions from the operation of

this act of relief for which the bill provides. If he had not

declared his intention to that effect, I would do so. In any event,

whenever he offers his amendment I shall most heartily support it.

In the course of this debate we have listened to some senators, as

they conjured up before our eyes once more all the horrors of the

Rebellion, the wickedness of its conception, how terrible its

incidents were, and how harrowing its consequences. Sir, I admit it

all; I will not combat the correctness of the picture; and yet if I

differ with the gentlemen who drew it, it is because, had the

conception of the Rebellion been still more wicked, had its

incidents been still more terrible, its consequences still more

harrowing, I could not permit myself to forget that in dealing with

the question now before us we have to deal not alone with the past,

but with the present and future of this republic.

What do we want to accomplish as good citizens and patriots? Do we

mean only to inflict upon the late rebels pain, degradation,

mortification, annoyance, for its own sake; to torture their

feelings without any ulterior purpose? Certainly such a purpose

could not by any possibility animate high-minded men. I presume,

therefore, that those who still favor the continuance of some of the

disabilities imposed by the Fourteenth Amendment do so because they

have some higher object of public usefulness in view, an object of

public usefulness sufficient to justify, in their minds at least,

the denial of rights to others which we ourselves enjoy.

What can those objects of public usefulness be? Let me assume that,

if we differ as to the means to be employed, we are agreed as to the

supreme end and aim to be reached. That end and aim of our endeavors

can be no other than to secure to all the States the blessings of

good and free government and the highest degree of prosperity and

well-being they can attain, and to revive in all citizens of this

republic that love for the Union and its institutions, and that

inspiring consciousness of a common nationality, which, after all,

must bind all Americans together.

What are the best means for the attainment of that end? This, Sir,

as I conceive it, is the only legitimate question we have to decide.

APPENDIX III

A TYPICAL COLLEGE FORENSIC

The forensic which follows is the one which was used by the State

University of Iowa in its debates with the University of Wisconsin and

the University of Minnesota in 1908. In the form in which it appears

here it was given in a home contest a few evenings before the

Inter-State Debate. It is quoted here with the permission of the

Forensic League of the State University of Iowa.

_Resolved_, That American Cities Should Adopt a Commission Form of

Government.

Mr. Clarence Coulter, the first speaker on the Affirmative, said:

It is not my purpose to picture the shame of American cities; that

is well known; but I am to consider only those evils due to the

present form of municipal government, an organization based on the

separation of the powers into the legislative, executive, and

judicial departments. The proper remedy for these evils will be

secured only by adopting a form which concentrates the entire

authority of city government in one definite and responsible body.

It is a significant fact, that during the last quarter of a century,

the tendency in municipal organization has been toward concentration

of powers. Certain of our cities have recognized the wisdom of such

action, but have unwisely attempted to concentrate only the

executive power whereas the real solution lies in concentrating all

governmental authority in one definite and responsible body.

New York City tried such a plan and it has failed; failed because

its separate legislative department has proved an obstruction to

effective action. Consequently, there has been a continual tendency

to deprive the council of all power, until today its only function

is to vote on franchises and issue certain licenses. So evident is

the imperative need of concentrating the legislative and

administrative powers in one body, that there is now a charter

revision committee meeting in New York whose great object is to

consider the advisability of entirely eliminating the separate

council, and creating in its place a small commission possessing

both legislative and administrative authority. Practically the same

condition obtains in the city of Boston.

What is true of New York and Boston is equally true of scores of

other cities. Memphis tried for years to reform her government with

an isolated council. Today she is clamoring at the doors of her

legislature for a commission charter. Within the past two years more

than a dozen states have provided for a commission form of

government, while within the past year more than a dozen cities have

actually thrown away their old forms and assumed the commission

system.

The success of a separate legislative body in state and national

government is the only excuse for its retention in our cities, yet

the failure, for over a century in all its different forms and

variations, proves that such a government is unsuited to them. There

are several important and fundamental characteristics of the city

that demand a different form of government and show conclusively

that there is no need of a separate legislative body. In the first

place, the city is not a sovereign government, but is subordinate to

state and nation. There is no reason for a distinct legislature to

determine the broad matters of policy, for they are determined for

the citizens of the city as well as those of the country, by the

state and national legislatures, in which both the city and country

are represented. In the second place, the work of a city is largely

administrative and of a business character, as my colleagues will

show, and there is no necessity for a separate council to legislate

when a commissioner is better able, as we shall show, to pass the

kind of legislation characteristic of the city.

In the third place, we do not find, as in the state, the necessity

of a large and separate body to represent the various localities.

The city has a large population living in a restricted territory; in

the state it is scattered. The city is unified by means of its rapid

communication and transportation facilities, and its interests are

common. These, Honorable Judges, are some general reasons why there

is no necessity for trying to maintain a separate legislative body

at the expense of efficiency in administration and the fixing of

individual responsibility.

But let us now examine as to wherein this principle of separation

fails to meet modern municipal conditions. In the first place we

find that this system has failed to produce efficiency, because, in

actual practice, it has been impossible to keep the legislative and

administrative branches within their proper spheres of action. To be

sure, such difficulty does not exist in state and national

governments where the work is naturally divided. But in city

government, where the work is of a peculiar kind, where it is

unified in character and is largely administrative and of a business

nature, it has been found impossible to maintain a separation. It is

not at all surprising to find that in some cities, the mayor is the

dominating factor in both legislation and administration. He is the

presiding officer of the council with the deciding vote, and, in

addition, is clothed with the veto power. On the other hand, there

are scores of instances where the council assumes administrative

functions. It names all appointments to office, and it creates and

controls all the departments of city government. Under such

circumstances the administrative department is subordinate to the

council, because its officers can be both appointed and removed by

that body and because it can carry on no work without the council's

authority. Thus there is an inevitable tendency to concentrate the

powers in one of the two branches, yet, at the same time, diffusing

responsibility between them. Such a condition only goes to show that

city government is gradually but surely working its way toward

concentration in one body. But the trouble lies in the fact that the

present system makes possible concentration of power, without a

corresponding concentration of responsibility. From such a condition

have grown two grave and inherent evils. First, it has entirely

eliminated the system of checks and balances, which is a fundamental

doctrine of the division of power. Secondly, it has utterly

destroyed all effective responsibility. It is apparent at once, that

when one branch of the government dominates, the checks and balances

between the departments are immediately lost, and facts bear out

what theory shows to be logically true. The system of checks and

balances failed absolutely in New York, where the mayor is supreme,

and where the city has been plundered of sums estimated at 7 per

cent of the total valuation of real estate. It has failed in St.

Louis, where the council dominated, and where "Boss Butler" paid

that body $250,000 to pass a street railway franchise. Neither did

it work in Philadelphia, which has been plundered of an amount equal

to 10 per cent of her real estate valuation; nor in San Francisco

under the disgraceful regime of Mayor Schmitz. So overwhelming is

the evidence on this point that it is needless to dwell further upon

it.

In the second place, this domination of one branch over the other

has resulted in a lack of responsibility and of co-ordination in

city affairs. These two elements are indispensable where the work to

be performed is of a local and business nature. We find that under

the present system, no matter which branch of government dominates,

there is always a notorious lack of responsibility. If the council

makes a blunder in legislation, it immediately lays the blame upon

the administrative officials, maintaining that it passed the measure

upon recommendation of the administrative branch, or that branch

failed to carry out its policy. If the administrative officials are

neglectful, they shift the blame onto the council, and insist that

the difficulty lies in insufficient legislation. Under such

conditions, the average citizen has no way of telling where the

blame really lies.

At present, there is no attempt at co-ordination between the

legislative, executive, and judicial departments. On the other hand,

there is often open rupture between them. For years before the

commission form of government was adopted in Galveston, there was

open warfare between the legislative and executive departments,

which saddled upon the city a bonded debt of many thousands of

dollars. In our state, there is a municipality in which the two

departments of government are defying each other. Both are

exercising legislative and administrative authority until the

citizens of that place are at a loss to know which is right. This is

admittedly a deplorable state of affairs, yet it is the logical

result of forcing upon the city a form of government entirely

unsuited for its needs. Moreover, this lack of co-ordination and

responsibility has resulted in the confusion of powers and the

creation of needless boards and committees. A recent investigation

in Philadelphia showed that it had four boards with power to tear up

the streets at will, but none to see that they were properly relaid.

Chicago finds herself possessed of eight different tax levying

bodies, while in New York City there are eighty different boards or

individuals who have power to create debt. Is it any wonder that

inefficiency and graft infest such a maze of boards, councils and

committees? We see, then, that the present system of separation of

powers produces inefficiency through a confusion of functions; it

does away completely with the system of checks and balances and

results in utter lack of responsibility and co-ordination of

departments.

Honorable Judges, if we are ever to arrive at a solution of our

municipal problem, we must concentrate municipal authority; we must

co-ordinate departments, eliminate useless boards and committees and

fix absolutely and completely individual responsibility. This, we

propose to do by establishing a commission form of government, where

all governmental authority is vested in one small body of men, who

individually act as the heads of administrative departments, but who

collectively pass the needed legislation. Thus, instead of a council

with restricted powers and divided authority, we have a few men

assuming positions of genuine responsibility, as regards both the

originating and enforcing of laws. My colleagues will show that such

a concentration of powers in one small body is necessary and

desirable, both from the legislative and administrative point of

view.

Such a concentration is desirable, since it is accompanied by a

corresponding concentration of personal responsibility. This is

secured in the commission system. Responsibility in administration

is secured, because each commissioner is at the head of a

department, for the efficient and honest conduct of which he alone

is held personally responsible. Responsibility in legislation is

secured, because, first, the body of legislators is comparatively

small. Second, the very fact that each commissioner possesses

information essential to intelligent action, places upon the

commission itself absolute responsibility. Such a system makes it

impossible to shift responsibility from one branch to the other, and

guarantees to us better and more efficient administration of our

municipal affairs for it eliminates all useless boards and

committees and fixes absolutely and completely individual

responsibility.

Mr. Earl Stewart, the first speaker on the Negative, said:

We wish it understood at the outset that no one deplores the useless

boards and complicated machinery in many of our American cities more

than do the Negative.

Before going a step farther let us get right as to what we mean by a

commission form. The gentlemen state that they are standing for a

concentration of all power in one small body. Honorable Judges, they

are standing for something different. It is possible to concentrate

all authority in one body and yet have the different functions

performed by separately constituted bodies. For example, the cabinet

system of Germany, where all governing power is vested in the

legislative body which in turn delegates all administrative

functions to the cabinet. Thus the legislative body is directly

responsible, having ultimate authority, yet the actual exercise of

power is done by distinct bodies. Now how is it with the commission?

There, not only does one body have ultimate authority, but it

actually conducts administration as well as legislation. Quoting

from Sec. 7 of the Des Moines charter, which is typical of every

commission form charter in this regard, it says: "All legislative,

executive, and judicial functions of the city shall be placed in the

hands of the commissioners who shall exercise those functions." The

Affirmative, then, are standing for fusion of functions, and not

concentration of powers.

The Negative do not defend the evils of present city organization.

The Negative believe that far-reaching reforms must be instituted

before we shall enjoy municipal success. The issue then is, does the

commission form, or do the reforms proposed by the Negative, offer

the more satisfactory solution of our municipal problems?

The Negative propose, first, that the form of organization shall

embody a proper correlation or departments.

In the early council system the functions of the legislative and

executive departments so overlapped that there was continual

conflict of authority. Under the board system the two departments

were almost disconnected, so that the legislative department could

not hold the executive accountable to the will of the people. In

many forms today, as the gentlemen have depicted, the relations

between the departments are such that responsibility cannot be

fixed.

But, Honorable Judges, these instances of failure do not show that

it is impossible to preserve a proper division of functions, for

every conspicuous example of municipal success in the world is based

upon the proper correlation between the legislative and

administrative departments. Municipal success in Europe is an

established fact. There we find the cabinet form. A similar form is

in vogue in Toronto, Canada, which Mayor Coatswain says is most

gratifying to the public. Says Rear Admiral Chadwick: "The city of

Newport, Rhode Island, has now a form of government that awakens the

interest of the citizens, keeps that interest awake, and conducts

its affairs in obedience to the wishes of the majority." Charleston,

S. C., Elmira, New York, Los Angeles, Cal., are but a few of the

typical American cities which have successfully adopted the ordinary

mayor and council form. Says Mayor Rhett, of Charleston: "I am the

executive of a city that has been under a mayor and council for over

one hundred years. It is quite as capable of prompt action on any

matter as any business corporation." The National Municipal League,

composed of such men as Albert Shaw, of New York City, and Professor

Rowe of the University of Pennsylvania, appointed a committee to

formulate a definite program of reform. This committee did not even

consider the abandoning of distinct legislative and administrative

bodies, but, after three years of unremitting effort, presented a

working system, embodying, in the words of the committee itself, the

"essential principle of all successful government," namely, the

proper correlation between the legislative and administrative

departments. That program has left marked traces in the constitution

of Virginia, Alabama, Colorado, New York, Wisconsin, Michigan, and

Delaware.

Proper correlation between departments is best facilitated in the

cabinet form, because all governing power is vested in the

legislative body, which in turn delegates all administrative

functions to the cabinet. However, many cities have properly

correlated mayor and council by utilizing the model charter of the

National Municipal League. The Negative, therefore, is here to

promulgate no specific form for all American cities: conditions in

Boston may require a different mechanism from that in San Francisco,

but whatever form, the underlying principle of a proper division of

functions must be embodied. The Affirmative must admit that proper

correlation of departments has brought about municipal success, as

far as mere organization can do so, yet, notwithstanding that, after

fifteen years of misrule under the commission form in Sacramento the

freeholders by unanimous choice again adopted distinct legislative

and administrative bodies; and that the commission form has lately

operated but a few years in a few small cities, amid aroused civic

interest. The Affirmative would abolish at one blow the working

principle of successful city organization in France, Germany,

England, Canada, and unnumbered cities in the United States.

In the second place, evils in our cities are due to bad social and

economic conditions. Harrisburg, Pa., was notoriously corrupt. A

spirit of reform aroused the citizens, and Harrisburg stands today

as a remarkable example of efficient government, yet the form of

organization has been unchanged.

Elements of Debating: A Manual for Use in High Schools and Academies · 第 4 / 9 段